Citation NR: 9608313
Decision Date: 03/29/96 Archive Date: 04/11/96
DOCKET NO. 94-07 830 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to service connection for a respiratory/pulmonary
disorder, including claimed as secondary to mustard gas
exposure.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Lorelle J. Nottle, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1945 through
December 1946.
This matter comes before the Board of Veteransí Appeals
(Board) on appeal from a November 1993 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Louisville, Kentucky (RO) denying service connection for a
respiratory/pulmonary disorder, claimed as secondary to
mustard gas exposure.
The Board notes that the veteranís son, on behalf of the
veteran, generally expressed disagreement with the ROís
November 1993 denial ďof the [veteranís] claim for exposure
to mustard gas.Ē While the RO decided solely the issue of
entitlement to service connection for a respiratory/pulmonary
disorder secondary to mustard gas exposure, the veteran noted
that he developed several ailments as a result of the alleged
exposure. In a VA Form 9 (Appeal to Board of Veterans
Appeal) received February 1994, a letter dated February
1995, and a VA Form 1-646 (Statement of Accredited
Representation in Appealed Case) dated November 1995, the
veteran, through either his son or representative,
specifically indicated that he also had skin and eye problems
as a result of mustard gas exposure. As the matters of
service connection for a skin condition and an eye condition
secondary to mustard gas exposure have not been developed
procedurally for appellate review, they are referred to the
RO for appropriate action.
REMAND
Service connection may be established for the development of
certain claimed conditions when a veteran can prove he was
exposed to specified vesicant agents during active military
service. 38 C.F.R. ß 3.316 (1994). When there was full-body
exposure to nitrogen or sulfur mustard gas during active
service, the following conditions may be service connected:
chronic conjunctivitis, keratitis, corneal opacities, scar
formation, nasopharyngeal cancer, laryngeal cancer, lung
(except mesothelioma) cancer and squamous cell carcinoma of
the skin. When there was full-body exposure to nitrogen or
sulfur mustard or Lewisite during active service, the
following conditions may be service connected: chronic
laryngitis, chronic bronchitis, chronic emphysema, chronic
asthma, or chronic obstructive pulmonary disease. When there
was full-body exposure to nitrogen mustard during active
service, service connection may be established for leukemia.
Service connection may not be established for any of these
conditions if the claimed condition is due to the veteranís
own willful misconduct or if there is affirmative evidence
that establishes a nonservice-related condition or event as
the cause of the claimed condition. 38 C.F.R. ß 3.316
(1994).
The veteran maintains that he was exposed to mustard and
artillery gas while stationed at Fort McClellan, Alabama
between February and July 1945. At the time, he was serving
with the United States Army, 1st Infantry Division, B-6th
Battalion, I.R. Transportation Corps, 2nd Training Regiment.
He claims he was subjected to gas chambers two or three
times, during which he was ordered to remove his face mask
and to jump and walk around. After the exercises, he
returned to the field for two or more days wearing the same
clothing. Subsequently, he allegedly developed eye problems,
nausea, skin rash, breathing difficulties and lung problems.
In November 1993, the RO denied the veteranís claim of
service connection for a respiratory/pulmonary disorder
secondary to mustard gas exposure on the basis that
exposure to mustard gas during service had not been
demonstrated. The veteran disagreed with the ROís denial;
thus, this appeal ensued.
In August 1994, proposed changes to 38 C.F.R. ß 3.316 became
final, effective January 6, 1993. Thereafter, the Veterans
Benefits Administration (VBA) of the VA issued guidelines for
the development of claims concerning exposure to mustard gas.
See VBA Circular 21-95-4 (Feb. 23, 1995). The guidelines set
forth procedures to follow in determining whether the veteran
was exposed during active service. Specifically, VBA
Circular, Appendix B, 2(c) indicates that for testing
allegedly done prior to 1955, the Commander of the U.S Army
Chemical and Biological Defense Agency should be contacted.
Appendix B, 2(a) indicates that the VAís Epidemiology Service
has compiled a list of mustard gas testing/training
participants that is available on request.
In December 1994, the RO contacted the Commander of the U.S.
Army Chemical and Biological Defense Agency (CBDA) querying
whether the veteran had been exposed to mustard gas during
active service. In January 1995, a representative from the
Historical Division of CBDA replied that the ďinformation
contained in the [ROís] original request was insufficient to
conduct a search...regarding the...veteran.Ē The letter
listed additional information that was required from the
veteran before the CBDA could proceed further with regard to
the ROís request. Interpreting the January 1995 reply as a
negative response, the RO, in a January 1995 rating decision,
again denied the veteran service connection based on his
failure to demonstrate exposure to mustard gas during active
duty. The RO never contacted the Advisory Review staff or
the Rating Procedures staff of VAís Epidemiology Service to
determine whether the veteranís name appeared on its list of
mustard gas testing/training participants. As the veteran
was never given the opportunity to supplement the information
initially provided to CBDA, and the VAís Epidemiology Service
was never contacted, the Board believes additional
development is required before it can proceed further with
the veteranís claim.
In addition, as a result of claimed exposure to mustard gas,
the veteran states that he currently suffers a
respiratory/pulmonary disorder. The veteranís service
medical records reveal that he sought treatment for what he
believed to be asthma three times in December 1945. During
one visit, he related a history of asthma since childhood
with continuous shortness of breath on exertion. Physical
findings showed no evidence of respiratory disease. At a VA
examination in July 1964, the veteran reported having asthma
since childhood. The VA examiner noted bronchial asthma, per
history. In June 1973, May 1974 and June 1974, the veteran
was diagnosed with pneumoconiosis. In May 1974, the veteran
was diagnosed also with obstructive emphysema. While the
veteranís treating physicians have intimated that the
veteranís current disability is related to his work as a coal
miner, there is no medical opinion addressing whether it is
related to his preexisting lung problems, or to his period of
active service, either directly or secondarily to mustard gas
exposure. As the issue of whether the veteranís current
respiratory/pulmonary disorder was incurred or aggravated in
service has never been discussed, the Board believes a
thorough VA examination is required before proceeding further
in this case.
Accordingly, to fulfill the VAís duty to assist the veteran
in developing facts pertinent to his claim and to ensure that
due process requirements have been met, the case is REMANDED
to the RO for the following development:
1. The RO should contact the veteran and
request that he provide the month and
year of each suspected exposure to
mustard gas, the duty station at which
the testing was performed, the type of
training during which the events
occurred, the equipment tested (i.e. mask
or protective clothing), and the specific
unit to which the veteran was assigned
(i.e. chemical company, field artillery
unit) during the testing.
2. Pursuant to VBA Circular 21-95-4
(Feb. 23, 1995), the RO should recontact
and provide the Commander of the U.S.
Army CBDA with the veteranís supplemental
responses. In addition, the RO should
contact the Advisory Review staff or the
Rating Procedures staff of VAís
Epidemiology Service to determine if the
veteranís name is listed as a participant
in mustard gas testing/training.
3. The RO should schedule the veteran
for a VA pulmonary examination. The VA
examiner should ascertain the nature,
severity and etiology of any pulmonary
pathology that may be present. The
examiner should review all pertinent
records in the claims file. All
indicated evaluations, studies and tests
deemed necessary should be accomplished.
The purpose of the examination is to
determine whether the veteranís pulmonary
condition was incurred or aggravated in
service. The examiner should address
specifically: (1) whether the pulmonary
pathology is attributable directly to the
veteranís period of active service, or
secondarily to his alleged exposure to
mustard gas, (2) whether the currently
diagnosed pulmonary condition is a
maturation of the veteranís preexisting
lung condition, and if so, whether .
it was aggravated in service. The
examiner should outline clearly the
rationale on which he bases his opinions.
It is imperative that the veteranís
disability be viewed in relation to his
history; thus, copies of the claims file
and this Remand must be made available to
the examiner prior to examination.
4. When the development requested has
been completed, the case should again be
reviewed by the RO on the basis of the
additional evidence. If the benefit
sought is not granted, the veteran and
his representative should be furnished a
supplemental statement of the case, and
afforded a reasonable opportunity to
respond before the record is returned to
rhe Board for further review.
The purpose of this REMAND is to further develop the case,
and the Board does not intimate an opinion, favorable or
unfavorable, as to its merits. The veteran may submit any
additional evidence he desires to have considered in
connection with his current appeal; however, he is not
required to act until he is notified.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, ß 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. ß 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. ß 20.1100(b)
(1995).
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